KINGSWAY GENERAL INSURANCE COMPANY v FEKETE CONSTRUCTION CO. LTD, 2011 ABQB 815
5.36: Objection to expert’s report
7.3: Summary Judgment (Application and decision)
This Action involved two lawsuits regarding foundational repairs to a residence. The Plaintiff, an insurance company for the owners of the residence, brought Actions against the construction and engineering companies involved in the construction of the residence. The Plaintiff hired experts to establish its claims of negligence and breach of contract against the Defendants. The Defendants responded by filing Third and Fourth Party Notices against the experts, who then Applied for Summary Judgment to have the Third and Fourth Party Notices struck.
In deciding this matter, Browne J. was unable to find any relationship between the Defendants and the Third and Fourth Party Defendants that could form the basis for a Cause of Action. Browne J. relied on the Supreme Court of Canada’s decision in Cooper v Hobart, 2001 SCC 79, and applied the reformulated two-stage analysis in Anns v Merton London Borough Council,  AC 728 (HL) that applies in establishing a duty of care. Browne J. stated “in my view and based on the reformulated Anns test, the required elements of foreseeability and proximity are not established at the first stage and consequently, a prima facie duty of care does not arise”. Further, Browne J. stated that allowing the experts “to be added as parties would change the nature of litigation involving expert witnesses, potentially, creating a duty or legal relationship between opposing experts and allowing them to be added as parties”. The Application was allowed and the Third and Fourth Party Notices were struck.View CanLII Details